The Act is flawed, being somewhat unconstitutional. As someone put it, the noun has become a hyperactive verb. It is adversely impacting the rule of law and democratic functioning. Ashok Kapur writes.

Officials of the sales tax department of the Delhi government raid a local eatery on the allegation of tax evasion. The owner rushes for help to a state government minister.

The minister rings up the raiding party to go slow on the raid and avoid unnecessary harassment. The matter reaches the Delhi lokayukta. He takes cognisance of the incident, makes enquiries and writes to the President of India, through the home ministry to ask the minister to resign.

The ministry takes the view that the matter is not so serious as to warrant the dismissal of the minister concerned. The president rules that the minister concerned may be cautioned and the case closed. The lokayukta is not satisfied and asks for a review of the president's decision.

The issue raises a question about democratic governance and the rule of law. It is not a mere question of malfeasance in public life but impacts the functioning of democratic institutions. It impacts the Cabinet system of government and the broader issue of accountability of an elected government to the state legislature.

Conceptually, the institution of lokayukta has been devised as a check on political corruption. It was felt that an autonomous institution was needed to look into allegations against the political establishment, especially at the state level.

The state lokayukta filled this gap. Undeniably, it is the lokayukta's remit to investigate corruption cases against the members of the state Cabinet. But the remit cannot, indeed should not, be extended to every misdemeanour that may be committed by ministers.

An elected minister may be answerable to an unelected official or, for that matter, an unelected judge for acts of corruption or gross abuse of law. But to hold ministers accountable for every act of misdemeanour to unelected officials, or unelected judges, would be contrary to basic democratic norms.

Elected ministers are accountable to the respective legislature. No other authority can usurp the role of the legislature. To do otherwise would be unconstitutional.

The SC in the celebrated case of Keshvananda Bharati has outlined the 'basic structure' of the Constitution which is inviolable. One of the features of the ‘basic structure' is democracy and the rule of law. None, not even members of the judiciary, can violate the 'basic structure'.

Lokayuktas serve under a specific law. But a lokayukta cannot so interpret his powers as to hold ministers accountable to himself. In another case the Delhi Lokayukta had indicted the serving chief minister for an administrative lapse was for printing her photograph on application forms for a social welfare benefit.

The root cause of the problem is the Delhi Lokayukta Act, which authorises action by way of prosecution 'or otherwise', over allegations against ministers regarding their 'conduct'.

Even assuming that the minister had asked the raiding party to abort the raid midway, it can be described as an administrative misdemeanour. The proper forum to check such conduct is the state assembly.

Besides, the officials of the raiding party are all permanent civil servants who are protected by law against such extra-constitutional pressure. They were under no obligation to heed the minister's orders over the phone.

The hapless citizen is virtually at the mercy of a bureaucrat and the omnipotent inspector, especially the ‘khaki variety', in a myriad ways. The ordinary citizen's first forum of informal appeal is his elected representative.

The latter's discretion to intervene in cases of harassment ought not to be curbed. Otherwise, the ordinary citizen will suffer.

The Act is flawed, being somewhat unconstitutional. As someone put it, the noun has become a hyperactive verb. It is adversely impacting the rule of law and the norms of democratic functioning.

Ashok Kapur, a former civil servant, is director general, Institute of Directors